Never Play Chess With Pigeons

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

I’ve been asked sign a bad performance review with a number of inaccuracies. Can I be fired if I don’t sign it? Or should I insist that it be amended to reflect the truth? Our Executive Director is very emotional and hard to deal with, but I’m thinking that I should at least try and sit down and get her to change her mind rather than just give in.

Unless you have an employment contract—or, in some cases, an employee manual—that specifically sets forth the circumstances and conditions under which you can be terminated, then it probably doesn’t matter whether you sign it or not. Many states, such as the State of New York, are what are referred to as “employment at will” states. You would need to check the laws in your specific state. However, “employment at will” means that an employer can pretty much hire and fire as he or she pleases and a discharged employee usually will have no legal recourse even when the discharge is unfair or unreasonable. The only exceptions would be termination based on statutorily defined discrimination—such as race, religion, gender, age, or disability. (Certain more enlightened jurisdictions, such as New York City, also include sexual orientation and marital status in this list.) Other than that, an employer in an “employment at will” state can walk in one day and fire anyone for any reason. In other words, unless one of the exceptions apply, you can be fired whether you sign the bad review or not.

Ideally, it would great if you could correct the record. A bad review that indicates you failed to follow instructions or disregarded office policies could negatively impact your eligibility for unemployment compensation should you be fired. However, correcting the record may not always be practical or realistic.

If your boss is “very emotional and hard to deal with”, you are not alone. There is no shortage in our industry of exceptionally talented and creative individuals who, nonetheless, should be heavily medicated. Many of these souls find themselves unfettered and autonomously in charge of distinguished arts organizations and businesses.

I am constantly amazed at how many people cling to the belief that a logical argument, persuasive reasoning, or “the right words” will magically transform an otherwise irrational person into Socrates. In fact, whether you are negotiating a contract or trying to mollify an artist, attempting to reason with an emotional or irrational person is like playing chess with a pigeon: it doesn’t matter how brilliant you are, the pigeon is still going to knock over all the pieces and poop on the chess board. Getting such a person to admit he or she is wrong about anything will only be met with defensiveness, paranoia, reminders of how you should be more appreciative of their past largess with regard to your past transgressions (most of which you will have never been told about before), and accusations that you are being argumentative, not a team player, exasperating, and disrespectful.

The best, and only, way to begin any conversation with someone being unreasonable or emotional, and who also happens to be in charge, is to validate, never confront. Assuming you want to remain employed, you need to accept that your boss “owns reality” at the moment and learn to live and work within that fantasy land. You don’t have to admit the facts to admit that your boss’s perception that you have done a poor job or failed to meet expectations is a perception you are enthusiastically willing to correct. Like a bad review of a concert or performance, thank the critic and then move on.

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For additional information and resources on this and other legal, project management, and business issues for the performing arts, visit ggartslaw.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!